The real price of legitimate expectations

Dr. Alex Brown draws from his recent book to discuss whether public services should always honour their promises made.

In early February 2018, the British Legal Aid Agency (LAA) agreed to provide funds to the families of people killed in the 1982 Hyde Park bombing as they pursue a civil lawsuit against the main suspect in the case, John Downey.

How did this situation come about, and why isn’t Downey being prosecuted under the criminal law? The answers lie back in 2014 when a criminal case against Downey at the Old Bailey collapsed and was dropped.

In the context of the Good Friday Agreement, the Police Service of Northern Ireland wrote to Downey—and other so-called “on the runs”—stating that it was not aware of any interest in him either by itself or by any other police force in the United Kingdom. In fact, this statement was incorrect: he was wanted by the Metropolitan Police in relation to the Hyde Park bombing.

During the Old Bailey trial, Mr Justice Sweeney reasoned that because of the “comfort letter” Downey received, he had legitimate expectations of not being arrested, not losing his freedom for a time, not having strict bail conditions, and not being put at risk of conviction for very serious offenses. So when the Metropolitan Police arrested Mr Downey at Gatwick Airport in May 2013, they frustrated these expectations. In the words of Mr Justice Sweeney, “the defendant was wholly misled.”

Such cases raise deep questions about the relationship between the state and citizens. But it is not just individual citizens whose legitimate expectations can be frustrated by government departments.

R (Luton Borough Council and others) v Secretary of State for Education, for example, centred on a decision taken by the then Secretary of State for Education, Michael Gove, to scrap the Building Schools for the Future (BSF) programme. Five local government councils sought judicial review of the decision. Mr Justice Holman ruled in favour of the councils on the question of whether or not Mr Gove’s decision had frustrated their procedural legitimate expectations; he characterized Gove’s decision-making process “as being so unfair as to amount to an abuse of power.”

When administrative agencies of government make promises or assurances to citizens or other non-governmental agents, should they always be held to those promises? What if the promises concern terrorist suspects? What if the promise concerns hundreds of thousands of pounds of funding for building projects?

I believe that administrative agencies of government need not always honour the legitimate expectations they are responsible for having created, because sometimes, doing so is not in the public interest.

Should decisions about the pursuit of retributive justice or urgent decisions about the use of public funds be bound by previous government promises?

Should the democratic will, insofar as it is expressed through the decisions of governmental administrative agencies, bend to the rule of law?

I believe that administrative agencies of government need not always honour the legitimate expectations they are responsible for having created, because sometimes, doing so is not in the public interest.

However, I also propose that, precisely because of their responsibility for having created legitimate expectations, the relevant agencies should at least pay compensation to agents whose expectations have been frustrated. I have in mind compensation that covers damage to reliance interests and associated losses caused by the frustration.

So Downey’s Old Bailey trial should not have been abandoned, but at the same time, he should have been able to claim compensation for any losses he suffered directly as a consequence of having been misled. Because he was routing through Gatwick airport to go on holiday when he was arrested, for example, he should have been allowed to claim for the costs of the holiday he could not take.

In that scenario, Downey could claim for reliance losses but the families would at least have the comfort of knowing that he would also face criminal justice.

What is more, I believe that a legal regime in which governmental administrative agencies have leeway to frustrate legitimate expectations in the name of the public weal, so long as they pay adequate compensation, can be grounded in norms and values we all have reason to care about.

Among these values are: good administration, trust-building, making credible commitments, minimizing the pain of frustration, the rule of law, and treating agents with equal concern and respect.

That the executive branch should not enjoy unfettered or absolute discretion to change policies is part and parcel of the ideal of constitutional democracy.

Featured image:”Old Bailey 2012″ by Tbmurray. CC BY 3.0 via Wikimedia Commons.

This blog was originally posted on the Oxford University Press Blog.

Dr Alexander Brown is Senior Lecturer in Contemporary Social and Political Theory at the University of East Anglia, and author of A Theory of Legitimate Expectations for Public Administration, a new release from Oxford University Press.

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